Page v Page

HIS HONOUR: This is a tragic case in which the Plaintiff, the brother of the deceased, seeks a family provision order out of the deceased’s estate and notional estate pursuant to the Succession Act 2006 (NSW) (“the Act”). He also seeks an order that his costs of the proceedings be paid out of the estate.

The Act applies in respect of the estate and notional estate of a person who died on, or after, 1 March 2009. The Act replaces the Family Provision Act 1982 (NSW) (“the former Act”), which was repealed, effective from 1 March 2009. A family provision order is an order made by the Court in relation to the estate, or notional estate, of a deceased person, to provide from that estate and/or notional estate, for the maintenance, education, or advancement in life, of an eligible person.

The Defendant named in the proceedings is the widow of the deceased and executrix named in the deceased’s Will, to whom Probate has been granted. Her principal submission is that the Plaintiff’s proceedings should be dismissed, with costs.

The case is tragic not only because the deceased died by his own hand in what were described as “horrific circumstances”, but also because there are allegations of sexual abuse made against him by the Plaintiff, which the Defendant, her and the deceased’s children, and other family members, have had to squarely face. In addition, the evidence relied upon (consisting of some 20 affidavits in chief, and in reply, by various family members) go to matters that would, undoubtedly, have been distressing to all of the family. The story is a sad one, and one cannot help but have a great deal of sympathy for all family members. Each has suffered, albeit in completely different ways. However, the case cannot be decided on this basis.

Despite the Plaintiff and his counsel’s repeated reference to “promises” said to have been made by the deceased to the Plaintiff, the case is not one in which the Plaintiff pleads an equitable estoppel arising out of statements said to have been made by the deceased to him. Nor is the case one for damages or compensation, for the sexual abuse alleged to have been suffered by the Plaintiff at the hands of the deceased.

On the third day of the hearing, at the end of the Defendant’s submissions, senior counsel orally sought an order anonymising the names of the deceased, the parties, and the children of the Defendant in the reasons for judgment that was to be reserved so that their identities would not be apparent. Until that time, such an application had not been advanced at any point during the hearing of the proceedings which took place in open Court.

The precise form of the order sought was not stated by senior counsel. However, I gathered that an order along the following lines was being sought:

Senior counsel stated that he did not “know what the protocol is in relation to judgments being used with pseudonyms” (T225.50) and offered to provide submissions. Following the completion of the hearing, late on 18 August 2016, my Associate, at my request, sent an email to leading counsel for each of the parties stating that submissions in writing should be forwarded to the Court within 7 days.

Late on 24 August 2016, junior counsel for the Defendant sent an email to my Associate that simply stated “…the Defendant no longer seeks the adoption of pseudonyms in the reasons for judgment in this matter”.

It follows that it is now unnecessary to deal further with the oral application made on behalf of the Defendant.

Hereafter, without intending to convey undue familiarity, with no disrespect intended, and for convenience and clarity, I shall refer to the parties and other family members, after introduction, by his, or her, given name.

The Plaintiff, Warren Anthony Page, asserts that he is an eligible person within the meaning of that term in s 57(1)(e) of the Act, namely, that he is a person who was, at any particular time, wholly or partly dependent on the deceased and who was, at that particular time, or at any other time, a member of the household of which the deceased was a member.

The deceased is Warren’s brother, Stephen James Page. The Defendant is the deceased’s widow, Patricia Jean Page.

There is no dispute that when they were children, Warren was a member of the household of which the deceased was a member. Nor is there a dispute that he commenced the proceedings by Summons filed on 23 February 2015, which was within the time prescribed by s 58 of the Act, namely not later than 12 months after the date of the death of the deceased. Otherwise, most of the necessary elements to be established by Warren, and many other facts, are in dispute.

It is appropriate to record certain matters which were not in dispute, or which I find to have been established on the balance of probabilities.

The deceased died on 3 July 2014, at the age of 58 years, having been born in April 1956.

The deceased was one of six children of the marriage of James Harold Page and Yvonne May Page. The other children, Lyle Vincent Page, was born in November 1957; Rodney Paul Page, was born in December 1958; Kieran Lawrence Page, was born in March 1960; Warren, was born in June 1961; and Neralie May Page, was born in August 1962. All of the deceased’s siblings gave evidence in the proceedings, except Keiran, and each of them was cross-examined.

Yvonne and James separated in about 1968. They did not live together at any time thereafter. A short time later, James died (in January 1970), at the age of 43. At that time, Warren was aged 9 years and the deceased was aged 13 years.

Yvonne is currently 81 years of age. She, too, gave evidence in the proceedings and was cross-examined.

Patricia is the surviving spouse of the deceased. She was born in September 1959. She met the deceased in 1980, when the deceased was aged 24 years and she was aged 20 years. They were married in January 1982 and they remained married until his death 32 years later.

There were three children of the marriage of the deceased and Patricia, namely: Carlie Jean Page, who was born in October 1982; Matthew Stephen Page, who was born in April 1984, and Daniel James Page, who was born in June 1990. Neither Patricia, nor any of the children, commenced proceedings for a family provision order under the Act. Only Patricia gave evidence, and she was cross-examined.

The deceased made his last Will on 30 October 2013. On 12 June 2015, this Court granted Probate of that Will to Patricia.

In the Will, as the deceased was survived by Patricia and also his three children, Clause 5 had the effect of dividing his estate into three equal parts with each part held on trust, by his trustee, subject to the terms of three testamentary trusts (one for each child), with the rest and residue of the estate, if any, passing to Patricia. There was no provision made for Warren in the deceased’s Will.

The deceased died leaving an estate in New South Wales and in Vanuatu. In the Inventory of Property attached to, and placed inside, the Probate document, the estimated, or known, value of the property owned solely by the deceased, in New South Wales at the date of death, was disclosed to be $53,339. The estate was said to consist of money in bank accounts ($1,586), various “vehicles” (with a total value of $45,000), scrap metal ($1,600), shares in companies ($151), and a boat ($5,000). The estate outside Australia, in Vanuatu, was disclosed as having an estimated, or known, value of $201,830. The estate was said to consist of money in bank accounts in Vanuatu ($6,056), shares in private companies ($2,774), and “vehicles” (with a total value of $193,000).

However, in her third affidavit, Patricia disclosed that there had been an error made in the valuation of the shares in private companies held in Vanuatu. The value of the shares was increased to $138,748. In addition, the money in bank was increased to $122,870. One vehicle was no longer listed ($30,000), with the result that the value of the deceased’s estate, in Vanuatu, was estimated to be $424,619.

In addition, there was disclosed jointly held property, being money in a bank account in the names of the deceased and Patricia ($5,343). (It was not suggested that one half of the amount held should be designated as notional estate.)

Patricia also disclosed that at the date of his death, the deceased was a member of the Page Executive Superannuation Fund. He left a Binding Death Benefit Nomination dated 30 October 2013, in relation to his superannuation entitlements (then about $272,667) in favour of Patricia. The trustees of the Superannuation Fund (Patricia and the deceased) resolved on that date to accept the Binding Death Nomination.

On 1 May 2015, Patricia signed a Member Notification to Trustee for Commencement of a Commutable Account Based Pension.

At the hearing, the parties agreed that the current value of the property forming part of the actual estate in New South Wales was $51,958. They also agreed that the current value of the actual estate in Vanuatu was about $379,429.

Neither party made any submissions, in writing, about the effect, if any, of s 64 of the Act, which provides that “a family provision order may be made in respect of property situated in, or outside, New South Wales when, or at any time after, the order is made, whether or not the deceased person was, at the time of death, domiciled in New South Wales” and whether the deceased died domiciled in New South Wales.

The relevance of the deceased’s domicile was explained by Brereton J in Chen v Lu [2014] NSWSC 1053 at [75] as follows:

At the hearing, the parties agreed that the value of property that may be designated as notional estate, at the date of hearing, was “at least $1.3 million”. No details of the nature of the property that could be designated was given, presumably, because Patricia accepted, in the event that Warren was successful in obtaining a family provision order and/or an order for costs, she would meet the amounts payable to him: T3.17 – T3.33.

Usually, in calculating the value of the deceased’s estate and notional estate finally available for distribution, the costs of the proceedings for a family provision order should be considered with circumspection. As Basten JA recently put it in Chan v Chan [2016] NSWCA 222, at [54]:

Warren, as the Plaintiff, if successful, normally would be entitled to an order that his costs, calculated on the ordinary basis, be paid out of the estate or notional estate of the deceased, whilst Patricia, as the Defendant and administrator of the estate, irrespective of the outcome of the proceedings, normally would be entitled to an order that her costs, calculated on the indemnity basis, should be paid out of the estate or notional estate.

The total of Warren’s costs and disbursements of the proceedings, calculated on the indemnity basis, to completion of hearing, were estimated to be a staggering $189,104. That estimate included an "uplift premium", pursuant to a conditional costs agreement between the Plaintiff and the firm of solicitors representing him.

A copy of the conditional costs agreement was not in evidence and, therefore, the Court was not provided with the percentage rate of the uplift fee, although the total amount thereof was estimated to be $17,233 (based upon professional costs of $86,119 as at 11 July 2016). The final uplift fee was not estimated, although the additional professional costs were estimated to be $33,000.

Neither party made any submissions, in writing, as to the entitlement of a Plaintiff to an additional amount for costs for the uplift fee, or the reasons why any such amount should be passed on to a Defendant by an order for costs calculated on the ordinary basis.

During oral submissions, however, it seems to have been accepted that the “uplift fee” was not part of the ordinary costs of the Plaintiff: Professor G E Dal Pont in Law of Costs, (3rd ed 2013, LexisNexis) at [17.55]. I have referred to the passage in Stojanovski v Stojovski [2016] NSWSC 976 at 47.

Warren’s costs and disbursements, calculated on the ordinary basis, were estimated to be $115,696. Without objection, the Court was informed that the amount did not include any uplift fee: T84.50 – T81.08.

The total of Patricia’s legal costs and disbursements of the proceedings, calculated on the indemnity basis, to completion of hearing, were estimated to be $230,536, an eye watering estimate on any view. Of this amount, Patricia has paid, from her own resources, $137,316. Assuming the estimate proves accurate, this leaves the amount of $93,220 left to be paid.

How the burden of the costs of the proceedings will be borne cannot be determined as part of these reasons, as counsel informed the Court that there are documents that may be relevant on the issue, depending upon the result of the proceedings. When these reasons are published, the parties will be given an opportunity to provide any further evidence and submissions on costs based upon the documents, if any of the documents are then relevant.

The parties agreed that the only eligible persons were Patricia and her three children with the deceased. The parties accepted that as a beneficiary named in the Will of the deceased, and even though each has not made an application for a family provision order, the Court is not entitled to disregard her, and his, interest, respectively, as a beneficiary of the deceased’s estate: s 61(1) of the Act.

None of them gave evidence of her, or his, financial circumstances. Each did not assert any financial claim on the bounty of the deceased. Each of the beneficiaries, however, did rely upon being a chosen object of the deceased’s testamentary bounty: T4.43 – T5.00.

The Court may assume that she, and he, respectively, does not wish her, or his, financial resources (including earning capacity) and financial needs, both present and future, to be taken into account: Matthews v Wear [2011] NSWSC 1145, at [45], per Macready AsJ.

The Court is also entitled to infer that each beneficiary has adequate resources upon which to live and that he, or she, does not wish to advance a competing financial claim upon the bounty of the deceased: Anderson v Teboneras [1990] VR 527; [1990] VicRp 47 at 535, per Ormiston J; Sammut v Kleemann [2012] NSWSC 1030, at [135]-[139]; Poletti v Jones [2015] NSWCA 107, at [23] (Basten JA).

Because the Plaintiff relied upon it, I note that the deceased had made a Will on 17 September 2009 (a copy of which was Ex. B) (“the 2009 Will”). In the 2009 Will, he had left the whole of his estate to Patricia, provided she survived him by 90 days; but if she did not survive him, he left the whole of the estate to the three children of the marriage who survived, and if more than one, in equal shares, provided that if any child died leaving issue, such issue was to take the share of his, or her, deceased parent; and, subject thereto, to the deceased’s siblings, including Warren, and if more than one in equal shares, as tenants in common. (I shall return to the relevance of the 2009 Will later in these reasons.)

There was a substantial dispute between the parties as to the extent the deceased sexually assaulted Warren. Patricia, naturally enough, was unable to lead direct evidence to contradict Warren’s allegations, although she relied upon what are said to be prior inconsistent statements made by Warren.

In this regard, it is important to remember that Warren’s allegation relate to what is said to have occurred over 40 years ago and where the alleged perpetrator of the alleged abuse is dead. In those circumstances, it is very hard to judge the truth of these matters.

In relation to conversations with the deceased, I must also bear in mind the need for careful scrutiny to which evidence in such a case should be subjected (Plunkett v Bull [1915] HCA 14; (1915) 19 CLR 544, per Isaacs J at 548-9), and whilst there is no absolute legal requirement for it, I should look for some corroboration (Re Hodgson (1886) 31 Ch D 177; Day v Couch [2000] NSWSC 230; Weeks v Hrubala [2008] NSWSC 162, [20] (Young CJ in Eq)).

I also remember what was written said by Emmett J (as his Honour then was) in Warner v Hung, in the matter of Bellpac Pty Limited (Receivers and Managers Appointed) (In Liquidation) (No 2) [2011] FCA 1123, at [48]:

It was not in dispute that between February 1969 (when Warren was aged 7) and January 1974 (when he was aged 13), he was the subject of a great number of very serious sexual assaults by an adult from outside the family, Fabian William Brilliante. These sexual assaults were the subject of criminal proceedings, which included 8 counts of buggery, which were determined in the District Court in June of 2000. Mr Brilliante was convicted of all counts and sentenced to a lengthy term of imprisonment, which the evidence indicates he did not survive. Subsequently, Warren made a Victims Compensation Claim, which was successful.

This matter is relevant for a number of reasons, one of which is that in the trial of Mr Brilliante, Warren gave evidence, some of which related to the deceased. The transcript of part of Warren’s evidence in that trial, was in the following terms (Ex. 3):

Despite these allegations having been made, no charges were ever laid by the police against the deceased; he was never committed for trial; and until early 2014 Warren never pursued him for any compensation.

It follows that there was no opportunity, during the lifetime of the deceased, to test, in any formal way, the truthfulness, or otherwise, of the allegations made against him by Warren.

Furthermore, in July 2014, Warren gave a signed statement to Police (Ex. 2), part of which was in the following terms:

(The last sentence of the last paragraph is difficult to reconcile with the evidence of the conversations, in early 2014, involving Warren, Stephen and Patricia.)

In his affidavits read in these proceedings, Warren painted a far more graphic, and extensive, picture of the sexual assaults said to have been perpetrated by the deceased, which is not necessary to repeat in these reasons. In my view, this Court, in these proceedings, should not determine whether the allegations of sexual assaults that have been made have been established. This type of allegation should not, normally, be determined after the death of the alleged perpetrator, in civil proceedings for a family provision order, on the balance of probabilities. Those allegations are being made against a person who is unable to defend himself. Others involved in the life of the deceased have little, or no knowledge, of the truth of such allegations.

These proceedings should not be the vehicle by which allegations of sexual abuse should be determined. Yet the current proceedings appear to have been conducted by or on behalf of Warren, almost completely, upon the basis that the deceased had a duty in his Will to make good to him the loss and damage said to have been suffered as a result of the alleged sexual assaults.

In Williamson v Williamson [2011] NSWSC 228 at [124] – [127] (albeit in respect of parental behaviour) I wrote:

In Curran v Harvey [2012] NSWSC 276, at [124], I added:

I repeated what I said in Williamson v Williamson in Fallow v Mullins [2012] NSWSC 406.

This was also the view expressed by the Court of Appeal in Victoria, in Jones (a pseudonym) v Smith (a pseudonym) [2016] VSCA 178, a case involving a claim for a family provision order, in which allegations of sexual abuse were established at the trial. That Court, at [40], wrote that similar legislation “[does] not create an alternative means of obtaining compensation or damages for a wrong done to a person by the testator or for which the testator bears some blame. Nevertheless, the testator’s conduct may explain why the claimant has a particular financial need.” (Omitting citations.)

Whether Warren has a particular financial need caused by the vestiges of the sexual abuse allegedly perpetrated upon him by the deceased is also complicated by the established conduct of Mr Brilliante. I shall next deal with the medical evidence upon which Warren relied, albeit that these proceedings cannot, and should not, be the vehicle by which complicated issues of causation are determined.

Warren relied upon a medico-legal report dated 30 June 2015, of Consultant Psychiatrist, Patricia Jungfer, a copy of which was Ex. A. She noted that he had been seen, once, “with regards to the ramifications of being sexually abused as a child by his older brother”.

Annexed to her report was a copy of a letter of instructions. In that letter, she was asked to consider and opine on the following questions:

Warren informed Dr Jungfer, that his “recollection of his brother is one of being terrified”; that he “was threatened and victimized by his older brother and threatened if he disclosed what had happened, and often implied that [Warren] would get into trouble if he had ever disclosed what occurred”.

Warren reported to Dr Jungfer that “he was never close to his brother, he was rarely invited to events in his brother’s life when his brother was an adult, and if there was any connection, or any contact or interaction, his brother always acted as a person who is superior and someone who has power over others”.

Again, I shall not repeat the allegations of sexual assaults communicated to Dr Jungfer, other than to note that they were far more serious and graphic than was asserted in the sworn evidence that Warren had given in Mr Brilliante’s trial and in the written and signed statement to the Police made by Warren, to which reference has been made.

In addition, the clear impression communicated by Warren to Dr Jungfer was that, over time, the forms of abuse alleged to have been perpetrated by the deceased escalated. The period over which the abuse was said to have taken place was “from the age of seven years … to 16 years and nine months”.

Importantly, from Dr Jungfer’s perspective, was the history provided by Warren that the sexual abuse by the deceased occurred first, and it was, in time, followed by the sexual abuse perpetrated by Mr Brilliante. Dr Jungfer described the history as relevant, because “in psychiatry we would view that as a person being re-victimised”: T93.24 – T93.29.

Also important to Dr Jungfer was the history given that the period of abuse by the deceased was longer than the period of abuse by Mr Brilliante.

Warren acknowledged to Dr Jungfer that “initially he could only recall 4 occasions when he had been abused by [the deceased] …subsequently …the events have become clearer and more intrusive”. Dr Jungfer explained this phenomenon as follows (at T97.26 – T97.41, correcting obvious transcript typographical errors):

Whilst Warren’s first affidavit (sworn 20 February 2015) and an affidavit of Yvonne, was provided to Dr Jungfer, neither the transcript of the evidence that he had given, or the written signed statement that he had made to the Police, were provided to her prior to her writing the report. In my view, these omissions affect the weight of the conclusions in her report.

Dr Jungfer described Warren as suffering from chronic post-traumatic stress disorder. She opined that he “would benefit from ongoing clinical psychological support”, at the cost of $235 per hour, but there is no evidence that he has taken her advice and attended upon a clinical psychologist. However, no more information about his current medical condition has been tendered.

In cross-examination, Dr Jungfer was referred to a number of the matters identified in Warren’s evidence at Mr Brilliante’s trial and what he had written in his statement to the Police. She was asked:

In re-examination, Dr Jungfer stated that “[I]f we look at childhood sexual abuse, it’s how much it invades the individual in a sense. So obviously oral sex and anal intercourse are more invasive”: T101.33 – T101.36.

There were several particular aspects of Warren’s evidence and of his conduct before and after the deceased’s death that I have found troublesome in the context of this case.

Overall, I did not find Warren to be a particularly impressive witness. I found him to be a witness who was extremely anxious to highlight that he had suffered at the hands of the deceased, and, although not put in these terms, to ensure that he should be compensated for the loss and damage that he believed had been caused by the deceased’s conduct.

In almost all of his affidavits, he had raised the allegations of the sexual misconduct, and very little evidence dealt with any other basis of his claim for a family provision order. (In this regard, I have not omitted from my considerations the allegations that he has made against the deceased, and the effect of those allegations on his ability to give evidence dispassionately.)

During the determination of objections to Warren’s affidavits, an issue arose concerning whether certain discussions, said to have been communications made between Warren and the deceased “in connection with an attempt to negotiate a settlement of a dispute” between them.

On enquiry, without objection, the Court was informed that there would be evidence going to the threat of civil proceedings made by Warren. (In fact, as will be read, there was another threat that extended beyond the threat of civil proceedings.) In particular, senior counsel for Patricia informed the Court not long after the commencement of the hearing (at T10.50 – T11.02) that:

The Court then raised the issue with Warren’s counsel in the following passage:

And so Warren was “asked about that”. During cross-examination, Warren was shown a letter dated 4 May 2016, sent by his solicitors (in these proceedings) to Patricia’s solicitors (in these proceedings) under cover of which was “a copy of the statement of claim prepared in respect of the matter”.

The draft Statement of Claim is headed in the Common Law Division of this Court; the named Defendant is Patricia; Warren asserts that he suffers from “post-traumatic stress disorder [which] impairs him in respect of his ability to be employed”; and Warren seeks damages “as a consequence of the said assaults by the deceased, the plaintiff [suffering] injury, loss and damage”, including the costs of medical treatment in the past and in the future.

Although lengthy, it is next necessary to set out the evidence initially given by Warren on this topic at T40.00 – T42.36:

Until the conclusion of the second day of the hearing, there was no evidence given about whether the Statement of Claim had, in fact, been filed. No evidence was given at all in respect of the matters asserted by Warren’s counsel in response to the Court’s concern.

In an affidavit sworn on the second day of the hearing, purportedly in reply, and filed without objection at the end of that day, Warren gave the following evidence:

Leave was granted to further cross-examine Warren on the contents of this affidavit on the third day of the hearing at T184.15 – T185.00:

One can see from the passage quoted, that Warren was not prepared to come to grips with what was being asked about his knowledge of the draft Statement of Claim. Repeatedly, he returned to the letter under cover of which that draft Statement of Claim had been sent.

Senior counsel returned to the topic at T186 – T188:

There was no evidence by any solicitor corroborating Warren’s evidence on this topic. No letter of advice, or diary note, going to the matters identified in his last affidavit, was produced, which is somewhat surprising, bearing in mind the nature of the evidence, in cross-examination, given by Warren quoted above and what leading counsel stated shortly after the commencement of the hearing.

In my view, the affidavit sworn by Warren on the second day of the hearing is inconsistent with the evidence that he gave when first shown the letter and the draft Statement of Claim. I do not accept his explanation of forgetfulness. After all, he stated that he had only been given advice a few days before the commencement of the hearing.

Also, the date of the letter does not bear out what was asserted by Warren’s counsel. By 4 May 2016, the nature and value of the deceased’s actual estate was reasonably clear, even if Patricia’s costs of the proceedings were not. In any event, the form of the order for costs and how the costs of any proceedings would be paid could not be predicted with certainty.

Accepting his evidence that by the commencement of the hearing, Warren had been given, and had accepted, advice that civil proceedings should not be commenced to seek damages for alleged sexual abuse, there is no evidence that Patricia was ever informed, until the affidavit served on the second day of the hearing, that no other civil proceedings against the deceased’s estate were to be commenced.

Section 92(2) of the Probate and Administration Act 1898 (NSW), relevantly, provides that an executor who distributes the assets or any part of the assets of the estate of the deceased is not liable in respect of those assets or that part of those assets to any person who has a claim in respect of those assets or that part unless the executor had notice of the claim at the time of the distribution.

Clearly, Patricia had been given notice of Warren’s claim. Unless informed that the claim was not being pressed, she would not have been able to distribute the assets of the deceased without taking the risk of being personally liable in the event that the claim was made and was successful.

In my view, the failure to inform Patricia, following any advice given to, and accepted by, Warren, that the threatened civil proceedings would not be commenced, gives further cause to doubt Warren’s evidence on this topic.

Warren’s conduct, after the deceased’s death, regarding service of the proposed Statement of Claim and subsequently not informing Patricia that he did not intend to proceed (if that was his intention), leads me to conclude that he wished to put as much pressure as he could on Patricia to avoid what was likely to be embarrassing litigation for her and her children, so that she would provide him with funds.

There is another aspect of the evidence, which, in my view, goes to Warren’s conduct and does not reflect well on him.

Warren gave evidence that in about January 2014, he decided to confront the deceased, directly, in respect of the alleged abuse “and seek restitution and compensation for the abuse."

This was followed by different text messages sent by Warren to the deceased, the first of which was sent on 6 February 2014 and was in the following terms:

The second text message was sent on 6 March 2014 and was in the following terms:

Warren was cross-examined on the second text message. After some prevarication, he admitted that his intention was that unless the deceased made good settling the claim out of court, Warren was going to speak to the police and “the Department of Prosecutions”. He added, in his oral evidence:

Warren denied that, in sending the text messages, his intention was to “blackmail” the deceased. He said at T50.47 – T51.03:

It is difficult to accept Warren’s attempt to justify his actions in sending the text messages to the deceased. There is no mention of wanting information in either text message. The import of each text message was a demand for money from the deceased, failing the satisfaction of which demand, Warren would take steps to inform the authorities of what was alleged to be the deceased’s criminal conduct.

The fact that he had sought advice on how best to frame the demand for money and that he was advised, so he said, by a solicitor, not to mention any amount, but leave to it to the deceased to do so, does not justify the sending of the threatening text messages. (No evidence from the solicitor who was said to have given that advice was called.)

In my view, the sending of these text messages was a deliberate demand for money, even if the amount demanded was not identified, and included a threat of the consequences if the demand was not met.

This aspect is important not only on the issue of Warren’s credit. It is also relevant to his conduct before the death of the deceased.

It is also relevant to the issue of “factors warranting the making of the application” in light of the decision of Master Macready in Boniadian v Boniadian; Beniation v Boniadian [2004] NSWSC 499, two claims for a family provision order, under the former Act, one by the widow, and the other by a daughter, of the deceased.

In that case, his Honour referred to evidence concerning the Plaintiff, Diana, which he accepted, about “a note to her mother in which she said that she wanted … her mother … to transfer $20,000 to her bank account and unless that happened she proposed to tell her relatives in the United States that Bob had molested her as a teenager”.

His Honour concluded at [66]-[68]:

Whilst there is no reference to “conduct disentitling” in the Act, as earlier stated, the conduct of an applicant, both before and after the deceased’s death, may be taken into account by the Court in considering Warren’s claim for relief.

Patricia was hardly cross-examined. No doubt, counsel for Warren considered the particular sensitivities of the case, but it was not suggested to her that her evidence, generally, did not accurately record what had occurred between the deceased and Warren in the months preceding the death of the deceased on the occasion she was present.

In her affidavit of 4 May 2015, Patricia had written:

On this aspect of her evidence, she was cross-examined, and she gave the following evidence:

I accept the evidence of Patricia, where it conflicts with that of Warren, on the conversations between them at which she was present.

The evidence given by Patricia regarding what Warren had said to the deceased about wanting restitution for what the deceased had allegedly done to him and the threat to “take this to the DPP” goes to Warren’s conduct before the death of the deceased. To conclude by stating “when you decide on an amount. If the number isn’t right I’ll be taking this further” does not provide any justification for Warren’s threat.

I shall next discuss the statutory scheme and what I have described as general principles. I discussed these matters in Sadiq v NSW Trustee and Guardian [2015] NSWSC 716. Although the subject of an appeal (which was dismissed), the Court of Appeal did not determine that any part of what I had said on the principles was in error: Sadiq v NSW Trustee and Guardian [2016] NSWCA 62. (The application for special leave to the High Court was dismissed upon the basis that any appeal would not enjoy sufficient prospects of success to warrant a grant of special leave: Sadiq v NSW Trustee and Guardian [2016] HCASL 180.) For the benefit of the parties, I shall refer to part of what I set out in that case.

The key provision of the Act is s 59. The Court must be satisfied, first, that the applicant is an eligible person within the meaning of s 57(1) (s 59(1)(a)). In New South Wales, it is a multi-category based eligibility system, rather than one with a general category of eligibility (as it is, for example, in Victoria). There are six categories of persons by, or on whose behalf, an application may be made.

Relevantly, in this case, Warren relies upon s 57(1)(e) of the Act. I have earlier referred to the terms of the sub-section. The language of the relevant sub-section is expressive of the person’s status, as well as his, or her, relationship to the deceased. There is no age limit placed on an eligible person making an application.

In the case of an applicant who falls within s 57(1)(e) of the Act, the Court must next consider and be satisfied, having regard to all the circumstances of the case (whether past or present), that there are factors which warrant the making of the application (s 59(1)(b)).

The applicant must also satisfy the Court that, at the time when the Court is considering the application, adequate provision for his proper maintenance, education or advancement in life has not been made, relevantly, by the Will of the deceased (the operation of the intestacy rules being irrelevant in this case in relation to the deceased’s estate): s 59(1)(c). If he does so, the Court may make such order for provision out of the estate or notional estate of the deceased as it thinks ought to be made for the maintenance, education or advancement in life of the applicant, having regard to the facts known to the Court at the time the order is made.

I shall discuss the relevant principles first, in relation to each, and interpose, immediately after that discussion, my findings and conclusions based on the facts found.

It can be seen, from the sub-section, that there are two limbs. Relevantly, the first is a relationship of dependence, whether wholly or partial, upon the deceased; the second is being “a member of the household of which the deceased person was a member”. Thus, an applicant cannot succeed except by virtue of a combination of status (membership of a household of which the deceased was a member) and actual dependency (whole or partial). Yet, household membership and dependency need not have occurred concurrently.

As stated, there is no dispute about the second limb. In this regard, the Act does not require that Warren, in order to qualify as “a member of the household” must have been living with the deceased at the date of his death. In addition, the Act does not specify a particular length of time during which the applicant must have been a member of the household of which the deceased was a member. All that is required is that such person be “at any particular time” a member of the household of which the deceased was a member.

The Act contains no definition of the words “dependent on”. There are no "tests" as such for the meaning of that term. It should be given its plain grammatical meaning.

In general, the word “dependent” connotes a person who relies upon support of another, financial and/or emotional. Dependency is not limited only to the class of persons actually in receipt of financial assistance from the deceased. The authorities reveal that the words are wide enough to cover any person who would naturally rely upon, or look to, the deceased, rather than to others, for anything necessary, or desirable, for his or her maintenance and support.

In Amaca Pty Ltd v Novek [2009] NSWCA 50; (2009) 9 DDCR 199, Campbell JA, with whom other members of the Court of Appeal agreed, wrote (in the context of a claim under section 15B of the Civil Liability Act 2002 (NSW)), at [45]:

In Skinner v Frappell [2008] NSWCA 296 at [85], Young CJ in Eq sitting in the Court of Appeal (with whom Campbell JA agreed), wrote:

In Petrohilos v Hunter (1991) 25 NSWLR 343 at 346-347, it was said:

The finding in Petrohilos v Hunter was that the plaintiff had been dependent upon her stepmother, in circumstances where, as a child, the plaintiff had lived with her father and stepmother. The stepmother "did all those things for the plaintiff that a mother in her circumstances does for a daughter from the age of five to the age of eighteen." As Campbell JA noted in Amaca Pty Ltd v Novek, at [41], "[t]hat case illustrates how a relationship of dependency can exist even when there is not the sort of obligation that a mother has to care for her own child".

In Williams v Legg (Court of Appeal (NSW), 16 March 1993, unrep), in a passage not set out in the report at 29 NSWLR 687, the Court of Appeal (Handley, Sheller and Cripps JJA) said:

In McKenzie v Baddeley [1991] NSWCA 197, Priestley JA (with whom Hope AJA agreed) held that the word “partly” in the phrase “partly dependent”, whilst a word of “some elasticity”, does not mean “substantially”, but means “more than minimally”, or perhaps, “significantly”. Meagher JA commented that “[c]ommon sense requires that certain trivial activities should be disregarded”.

A similar view was taken by the Court of Appeal in Alexander v Jansson [2010] NSWCA 176 at [13]. At trial (Alexander v Jansson [2009] NSWSC 1000 at [27] – [30]), McLaughlin AsJ had written:

On appeal, Brereton J, with whom Basten JA and Handley AJA agreed, wrote, at [13]:

In Tobin v Ezekiel [2012] NSWCA 285; (2012) 83 NSWLR 757, at [109], Meagher JA wrote that dependency “in this context means actual reliance on someone else for the total or partial satisfaction of some need. It is not limited to purely financial or material matters”, and at [110], that it “may exist, irrespective of whether the dependent person is financially or physically able to support himself or herself”.

In Re Estate of Hakim; Simons v Permanent Trustee Co Ltd [2005] NSWSC 223 at [42], Palmer J wrote:

In Bayssari v Bazouni [2014] NSWSC 910 at [53], Ball J put the matter this way:

The question of dependency, whether whole or partial, is a complex question of fact: Aafjes v Kearney [1976] HCA 5; (1976) 180 CLR 199. It is not to be determined upon theoretical considerations. It is "the actual fact of dependence or reliance on the earnings of another for support that is the test": per Gibbs J, as he then was, in Kauri Timber Co (Tas) Pty Ltd v Reeman [1973] HCA 8; (1973) 128 CLR 177 at 189.

In Justyn Marcus Ng v Neville Mark Morgan & Anor; Selena Natanie Ng v Morgan; Commonwealth Bank of Australia v Neville Mark Morgan in his capacity as Administrator of the estate of the late Dell Smith [2014] NSWSC 536 at [140], Slattery J wrote:

As Macready AsJ noted in Dunn v McCarthy [2010] NSWSC 675 at [29], “[w]ith young children dependency becomes complex”. However, that was in the context of an adult who was not the parent of the young children.

There is a dispute about some of the matters to which I shall next refer. What is set out are the findings of the Court.

In April 1969, the deceased went to St Vincent’s Boys' Home at Westmead. The precise circumstances of the deceased’s placement at the St Vincent’s Boys Home were not fully disclosed in the evidence. Yvonne gave evidence that it was a mutual decision of her and of the deceased.

In the “Declaration by Parent or Guardian” signed by Yvonne, seeking the deceased’s admission to the St Vincent’s Boy’s Home, the following passages appear:

The deceased remained a boarder there between April 1969 and about October 1972.

There is a dispute about how regularly the deceased returned home in those three years, but the evidence overall, despite the paragraph above regarding the absolute discretion of the Brother Director of the St Vincent’s Boys Home, suggests that it was on some weekends and during school holidays. I do not think that much turns on this dispute because there is no suggestion that during the period until October 1972, Yvonne was not at home other than for short periods when she was at work.

Yvonne, during the period 1966 to about 1971, worked at Grace Bros, 1.5 days per week (on Thursday until 5:00 p.m. and on Saturday morning). She was sometimes called in to do extra hours if somebody was sick. There is no suggestion that she worked at night during this period.

In about 1971, Yvonne started to work at a second job. It was usually on a Sunday night, but usually, on the way to work, she would take the deceased back to school. He was away from home between late Sunday afternoon and usually Friday afternoon.

The deceased commenced a Food Technology Diploma Course (Trade Cookery) at Hawkesbury Agricultural College in about 1973. In January 1974, he commenced working at The 729 Club at St Leonards. In addition to his full time work, there is evidence that whilst working, and until July 1975, he worked 317 overtime hours. In about June 1975, he commenced working a 40 hour week at Grace Bros, Chatswood.

As to holidays, there is evidence that at the funeral of his grandmother, the deceased had said “All of us grandchildren spent holidays with Nanna Grandma and John at Chatswood. We had to share the valued time amongst the six of us…”. It was not suggested by Warren that this statement was not accurate as to at least how he spent part of the holidays.

In addition, Yvonne gave evidence that she would take all of the children up to the Entrance for about two weeks, in some of the holidays, and that she would be there with them.

I am satisfied that, relevantly, the deceased and Warren were members of the same household until at least 1972, and perhaps longer, although the deceased may not have been living at home for all of the time after late 1972. (This does not mean, however, that he was not part of the household.) However, there is no suggestion that they were members of the same household at any time after about 1979.

There is no suggestion that Warren was wholly, or partly, financially dependent upon the deceased then, or any time thereafter. Nor did Warren suggest that he regarded himself as financially dependent on the deceased at any time. Nor did he seek, or require, any financial assistance from the deceased at any time when each was an adult, other than in the conversations to which reference has been made.

Thus, the only alternative if Warren is to establish eligibility, then, is for Warren to establish that there was another “form of dependence analogous to, but distinct from, financial dependence".

In regard to the other form of dependence, far more time than was necessary was spent on the assertion that the deceased “was in charge of” the children who were younger than him at times when their mother, Yvonne, was not present.

There is evidence that when Yvonne was not at home, and the deceased was there, the deceased ensured the home was secure at night; that Warren and the other siblings left home in time for school; that household chores were completed by the sibling responsible; he prepared and served some meals; that he supervised homework and play periods, that the other children were in bed at a reasonable hour, and ready for school each day. It appears that Yvonne had requested the deceased to undertake this role when the deceased was about 15 years of age (after April 1971).

On this topic, the following evidence, given by Yvonne, at T126.04 – T127.30 seems likely to be the most reliable in relation to the period prior to 1973:

This is not a case where Warren, as a child, was entrusted, on a day to day basis, to the deceased’s care during the period referred to. Nor is it one where the deceased could be regarded as having been in loco parentis.

I do not accept the evidence of Warren, Lyle, or of Yvonne, that the deceased continued in this role after about late 1973, to any great extent. In early 1974, he commenced full time work as well as doing some overtime. He was described by his brother, Rodney, as a teenager with “a busy social life”. The likelihood is that he spent less and less time at home with his mother and his siblings.

Thus, in my view, the opportunity for him to perform the tasks that he had performed when he was not at school but living at home, would have diminished over time for these reasons and because each of his siblings was also growing up.

I am also not satisfied that the deceased continued to play any role which could be described as him “being in charge” in relation to Warren after about late 1973. Even before then, it was limited to the occasions when Yvonne was not present.

Whilst a person may be dependent upon another whether or not there is a co-existing legal duty, the existence of such a duty is one of the many elements to be taken into account in deciding upon the factual question of dependency Middleton v Kiama District Hospital [1970] 3 NSWR 136 at 138; Bayssari v Bazouni at [37] (Ball J).

It was not submitted that there was any legal duty upon the deceased to maintain Warren at any time. His mother, Yvonne, may have asked the deceased to assist her, but it is unlikely that Warren was dependent upon the deceased to play the role of surrogate parent. It is hardly the case that Yvonne abrogated her parental responsibility to the deceased.

Nor do I accept that Warren, as a child, could not survive without what the deceased is said to have done, as a result of Yvonne’s request, or that if the services provided by the deceased had been withdrawn, Warren would have had difficulty undertaking the tasks himself by reason of his age or otherwise.

Nor is there any evidence that satisfies me that Warren “needed” what was said to have been provided by the deceased, in the sense that it was necessary for his well-being. In my view, Warren’s needs to be fed, cared for, and accommodated were all provided by Yvonne, not by the deceased.

I think it is far more likely that it was Yvonne who depended upon the deceased to ensure that her directions, whether to complete chores, get ready for school, to make dinner and the like, were performed by her other children.

There is only one piece of evidence that Warren “relied upon” the deceased. At T66.17 – T66.21, in cross-examination, he gave this evidence:

There was no evidence of the nature of the support, or the guidance, said to have been provided in re-examination. None had been provided in Warren’s affidavits.

I do not accept Warren’s evidence, in this regard, as reliable. There is simply nothing in the evidence to corroborate this one assertion. The evidence overall does not suggest that Warren relied upon the deceased for any measure of emotional support or guidance. To the contrary, I accept this part of the history provided by Warren to Dr Jungfer, being that he was “never close to” the deceased.

In all the circumstances, Warren has not established, to my satisfaction, that he is an eligible person within s 57(1)(e) of the Act. It follows that the proceedings must be dismissed.

Having regard to the conclusion I have reached on eligibility, this question does not strictly arise. However, I should say something about this aspect.

The Act does not specify the “factors which warrant the making of the application”. As Pembroke J noted, in Wilcox v Wilcox [2012] NSWSC 1138 at [16], “[n]o legislative assistance is given as to the intended scope or meaning of this enigmatic requirement”.

Factors warranting the making of the application were described by McLelland J (as his Honour then was), in Re Fulop Deceased (1987) 8 NSWLR 679 at 681 as being:

In Churton v Christian [1988] NSWCA 23; (1988) 13 NSWLR 241, the Court approved this statement. Priestley JA, at 252, after setting out and approving the statement, added:

These principles have been applied, at first instance, for many years. However, in Brown v Faggoter [1998] NSWCA 44, a decision of the Court of Appeal in which Fitzgerald AJA delivered the principal judgment, there seems to be the suggestion that an application might be warranted if the application has reasonable prospects of success. This seems to be a somewhat different and, perhaps, an easier, test than that which the Court of Appeal approved in Churton v Christian.

In Penfold v Perpetual Trustee [2002] NSWSC 648, Windeyer J did not follow Brown v Faggoter. Bryson AJ also commented in Porthouse v Bridge [2007] NSWSC 686 at [9]:

More recently, in Diver v Neal [2009] NSWCA 54, Basten JA, with whom Allsop P and Ipp JA agreed, said of s 9(1), at [8]:

In Evans v Levy [2011] NSWCA 125, Young JA, with whom Campbell JA and Sackville AJA agreed, wrote, at [62]-[64]:

In Sassoon v Rose [2013] NSWCA 220 at [15], the Court of Appeal referred to the fact that the trial Judge (Macready AsJ) had:

In Porthouse v Bridge, Bryson AJ commented, at [7] and [9]:

In Chapple v Wilcox [2014] NSWCA 392; (2014) NSWLR 646, at [4]-[6], Basten JA wrote:

Finally, I refer to Yee v Yee [2016] NSWSC 360 at [199] – [200], in which Slattery J wrote, after referring to the authorities:

It can be seen that the trend of authorities does not favour the view suggested in Brown v Faggoter. With great respect, I also regard the views expressed in the authorities referred to by Windeyer J, Bryson AJ, Basten JA, Young JA and Slattery J as correct, and propose, in the circumstances, to follow their decisions.

Even though I have determined that Warren is not an eligible person, I shall, for completeness, turn next to whether there are factors warranting the making of his application. In this regard, the Court must consider whether “factors” exist which, when added to the facts which render the applicant an “eligible person”, give him the status of a person who would generally be regarded, according to community standards and expectations, as a natural object of testamentary recognition.

Warren relied upon the 2009 Will as demonstrating that he was a natural object of testamentary bounty. It is true that the deceased mentioned his siblings, including Warren, as objects of testamentary recognition in the 2009 Will. However, that was in the context of Patricia and each of their three children not surviving, and each having no issue that survived. This does not suggest that the deceased had Warren, or his other siblings, in strong contemplation as a person who he considered should be the recipient of his benefaction. In any event, the 2009 Will was revoked by the last Will of the deceased. In my view, that he was named as a substitute beneficiary in the 2009 Will is not a factor warranting the making of Warren’s application.

Next, the following matters (which I have numbered) were identified in his Counsels’ submissions:

These matters, even if they were regarded as having occurred, speak more to damages and compensation, than to factors warranting the making of an application for a family provision order. To the extent that they do, there would be a real question about the effects attributed to the deceased’s alleged conduct when taken in the context of Mr Brilliante’s established conduct.

Warren’s counsel relied upon the alleged sexual assaults as a factor warranting the making of the application. In my view, and as a general principle, they are not factors that would lead to a perpetrator determining that some provision should be made for the victim out of his or her estate.

To the extent that particulars (xi), (xii) and (xiii), are relevant to “factors warranting the making of the application”, I am not satisfied that the deceased made any promise to Warren to provide him with monetary assistance for his financial needs.

Even if I am wrong and there were conversations in which the deceased mentioned “providing for” Warren, the context of the conversations seemed to be to avoid publicity, perhaps criminal charges that might be laid, and the hurt that would be inflicted upon members of the deceased’s family. The conversations do not establish, to my mind, a factor warranting the making of the application for a family provision order.

When one considers this question according to community standards, I am of the view that Warren, as the brother of the deceased, has not established such factors. The blood relationship, in circumstances where there are blood relatives who are closer to the deceased, is not a factor.

Approaching the matter this way obtains some support from the provisions of Ch 4 of the Act dealing with intestacy. On intestacy, the siblings of an intestate are entitled to the whole of the intestate estate only if the intestate leaves no spouse, no issue, and no parent surviving: s 128 of the Act. The Act, itself, seems to suggest that a sibling, only in certain circumstances, which do not exist in the present case, is regarded as a natural object of testamentary recognition.

Having considered all of the evidence, I am not satisfied, for the purpose of section 59(1)(b) of the Act, that there are factors which warrant the making of Warren’s application.

Since I am not satisfied that Warren is an eligible person, and, also, that having regard to all the circumstances of the case (whether past or present) there are no factors which warrant the making of the application, the Court is not able to make an order for provision.

In the circumstances, it is unnecessary to deal with whether the provision made for Warren in the Will of the deceased is inadequate.

The Summons must be dismissed and I so order.

In view of the request of the parties that the question of costs be determined following these reasons being published, I order that any argument as to the costs of the proceedings and how those costs are to be borne, be listed on a date to be arranged when these reasons are published.

I also order that the Exhibits should be dealt with in accordance with the Uniform Civil Procedure Rules 2005 following the determination of the costs of the proceedings.